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Adamson: Energy bills carry both risk and opportunity

Free enterprise Republicans will have to forgive us in Indian country if we get nervous every time a bill is introduced that offers a way to circumvent the trust authorities of the federal government.

You see, we have a long memory for those many, many occasions when state and business interests have allied themselves against us the minute our federal trustee stepped back, even if a little bit, from between us.

Such a step back has recently occurred - and more than a bit of a step back it was. With the Supreme Court's decision in Navajo Nation v. United States, the handwriting appeared on the wall with a gravitas almost worthy of the Old Testament. In light of that decision, every federal agency can or may insist that tribes demanding managerial participation in their own projects have assumed their own risks and liabilities in full. In the words of that seasoned champion, Sen. Daniel Inouye of Hawaii, the government will wash its hands. The court system is standing by to interpret the federal trust function as a guarantee of tribal property rights, but not of an interest in the assets derived from them unless specific liabilities are spelled out in the governing federal statutes.

If many of us were nervous about free enterprise before this out-of-bounds court decision, many of us are no doubt near-frantic now over the future configuration of the federal-tribal trust relationship.

Against this background come three energy bills in the current Congress. Taken altogether, they can't help but nudge us toward a still more advanced state of panic.

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They are energy bills S. 424 and S. 522, as well as Title 3 in the national energy legislation scheduled for reporting out to the full Senate from the Energy and Natural Resources Committee. The details do matter, but this is not the place for them. Rather, this is the place to take note of their broader purpose - they are attempts to streamline energy development initiatives by tribes that are already well-positioned for such initiatives. And have no doubt: they come around now because the time is right - politically speaking, with a Middle East in conflict and unstable fuel prices throwing oil into high profile - to bring the natural resources of tribes into the national pipeline if you will.

A number of the national lawmakers behind this emphasis on tribal energy resources, most notably Ben Nighthorse Campbell, R-Colo., co-chairmen of the Senate Committee on Indian Affairs, Jeff Bingaman, D-N.M., and Pete Domenici, R-N.M., have introduced bills with "opt in/opt out" provisions for tribes - that is, under the terms of such legislation if passed, tribes would be able to circumvent federal approval processes in the interests of various development initiatives if they choose (in the process giving up any claim on federal liabilities for a project gone wrong). But if they do not choose, nothing forces them to develop their energy resources in a streamlined way, and the federal trust relationship remains in full effect. (Of course, it's a changing relationship after the Navajo decision, as even the Navajo have acknowledged.)

That is some of the good news about these bills. But there is bad news too. Domenici's proposals in particular could play havoc with the environment. And with so much concerning tribal trust property in third-party hands uncertain in the refined legal sense, or settled against us in the courts as in the Navajo travesty ? well, a streamlined approval process for any large energy project on tribal land is strewn with pitfalls all along the way. It is only wise to note that any tribe will be well-advised to consider its capacity to perform professionally for itself before signing off on self-determined projects. Only tribes that are truly ready for them, with some experience and a track record, and tribal professional capacities already in place, should consider themselves qualified to "opt in." They owe their future generations this much precaution at least. Many tribes have nothing to fear; but for others, self-determination without the capacity to deliver results could prove merely a blandishment to self-termination.

Finally, a word of comfort can be found in all this. Though it is always unnerving when the handwriting appears on the wall, in fact the Supreme Court's Navajo analysis is predictably within a pattern of dynamics that has characterized modern tribal self-determination as federal policy from its earliest days. Thirty-five years ago and more, Indians took the initiative and made tribal self-determination their destiny, as later formalized in federal policy. But as those of us who were there learned firsthand, tribal self-determination proved to be more process than substance as long as tribes had no hold on the purse strings of their projects. So we moved on to the next phase of modern self-determination - managing our own projects with federal funds. And now the high court, with an assist from the current presidential administration and the enterprising climate of the times, has decided that such management introduces another layer of distance between tribes and the federal trust responsibility.

This interpretation is worthy of serious concern. But that said, the ball is in the tribal court. We must not hesitate to forge ahead with the key program of building tribal capacities, in energy and in other fields. If we can commit ourselves to that much in deep earnest, we may find that this new distance between ourselves and the federal trustee, however perilous, also holds good room for growth.

Rebecca Adamson is president of First Nations Development Institute and a columnist for Indian Country Today.